Opinion
22A-JC-928
10-19-2022
In the Matter of: A.S., B.S., C.S., and D.T., Children in Need of Services: v. The Indiana Department of Child Services, Appellee-Petitioner. C.W. (Mother), Appellant-Respondent,
Attorney for Appellant Noah T. Williams Monroe Co. Public Defender Bloomington, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Monroe Circuit Court The Honorable Stephen R. Galvin, Judge Trial Court Cause Nos. 53C07-2111-JC-565 53C07-2111-JC-566 53C07-2111-JC-567 53C07-2111-JC-568
Attorney for Appellant Noah T. Williams Monroe Co. Public Defender Bloomington, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BRADFORD, CHIEF JUDGE
Case Summary
[¶1] C.W. ("Mother") is the biological mother of A.S., B.S., C.S., and D.T. (collectively, "the Children"). The Department of Child Services ("DCS") became involved with the family in July of 2021, after receiving reports of neglect, drug abuse, and domestic violence in the home. On November 23, 2021, DCS filed a petition alleging that the Children were children in need of services ("CHINS"). On January 19, 2022, DCS filed a petition for the admission of child hearsay, seeking to have certain recorded statements made by A.S. and B.S. deemed admissible. Following a hearing, the juvenile court granted DCS's petition. The juvenile court conducted a factfinding hearing on February 17, 2022, after which it found the Children to be CHINS. On appeal, Mother contends that the juvenile court abused its discretion in admitting A.S.'s and B.S.'s statements. We affirm.
Mother does not challenge any of the juvenile court's factual findings, which therefore "must be accepted as correct" on appeal. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) ("Because Madlem does not challenge the findings of the trial court, they must be accepted as correct.").
[¶2] Mother is the biological mother of A.S. (born January 8, 2013), B.S. (born April 19, 2014), C.S. (born September 4, 2016), and D.T (born September 18, 2019). Ad.S. is the biological father of A.S., B.S., and C.S., and T.T. is the biological father of D.T.
Neither Ad.S. nor T.T. participates in this appeal.
[¶3] In June of 2018, DCS became involved with Mother due to Mother's abuse of methamphetamine, amphetamine, THC, and Xanax. At some point, A.S., B.S., and C.S. were removed from Mother's care and, on December 10, 2018, were adjudicated to be CHINS. Although Mother continued to test positive for methamphetamine and marijuana in early 2019, she eventually participated in substance-abuse treatment and stopped using methamphetamine. The case was closed on November 3, 2019, and A.S., B.S., and C.S. were reunited with Mother.
[¶4] On July 29, 2021, DCS received a report indicating that the Children were outside Mother's apartment without appropriate supervision. Family Case Manager ("FCM") Samantha Rice went to Mother's apartment, and after announcing herself several times and threatening to call the police if no adult came outside, FCM Rice managed to speak with Mother and T.T. Mother appeared to be "pretty frustrated and pretty angry." Tr. Vol. II p. 149. Mother told FCM Rice that A.S. "would go outside without permission" and indicated that "she was tired of dealing with these behaviors, [and] was considering sending [A.S.] to Bloomington Meadows Hospital." Tr. Vol. II pp. 149-50. Mother was "yelling about it and cussing in front of" FCM Rice and A.S. Tr. Vol. II p. 150. Mother admitted to "almost daily use" of marijuana, claiming that it helped "her sleep at night." Tr. Vol. II p. 151. Mother refused a drug and alcohol screen and denied "that there had been any incidents of physical altercations" in the home. Tr. Vol. II p. 152.
[¶5] Mother allowed FCM Rice to speak with A.S. A.S. told FCM Rice that
She didn't want her mother to know what they were talking about because she didn't want to get in trouble. She was worried that her mother would hear what she was saying about [Mother's] arguments with [T.T.]. She was worried she would get in trouble for discussing this. Her mother and [T.T.] would get in arguments. Household items would be thrown during the arguments. [T.T.] had once tried to hit her mother with a hammer. [A.S.] was present when these things occurred. A television was broken during one of the arguments. [A.S.] was worried about being smacked in the face by her mother. She had already been smacked in the face that day for being outside without permission. She stated that her mother and [T.T.] smoke "green" in the home. [T.T.] drinks "Fireball" and acts crazy when he is drinking.Appellant's App. Vol. II p. 96.
[¶6] A.S., B.S., and C.S. did not attend the first five days of the 2021-2022 school year. At approximately 11:00 a.m. on August 9, 2021, a caller reported to Arlington Heights Elementary School social worker Alejandra Shaffer that A.S., B.S., and C.S. had been standing in the rain, supposedly waiting for the school bus, since approximately 9:00 a.m. Shaffer attempted to contact Mother twice without success. Shaffer went to Mother's home, where she found the front door open. There was no response, however, when Shaffer called out. Shaffer eventually located A.S., B.S., and C.S. at the bus stop and took them home. Upon returning home, Schaffer "asked the children to get their mother," after which one of the children indicated "that she is asleep." Appellant's App. Vol. II p. 97.
[¶7] Mother, T.T., and D.T. eventually came to the door, at which time Mother "cursed and yelled" at Shaffer, A.S., B.S., and C.S. Appellant's App. Vol. II p. 97. Mother then threw A.S.'s, B.S.'s, and C.S.'s backpacks and a plastic toy inside the house "in the vicinity" of the Children. Appellant's App. Vol. II p. 97. Shaffer concluded "that this was a potentially unsafe situation" and contacted FCM Rice. Appellant's App. Vol. II p. 97. Mother told Shaffer that "she didn't want" A.S. and "wanted DCS to take" her. Appellant's App. Vol. II p. 97. A.S. "was present and [ ] crying" when Mother said this. Appellant's App. Vol. II p. 97. When FCM Rice arrived, Mother "told her that she was done with [A.S.] She was tired of being her mother" and that DCS "should just take her." Appellant's App. Vol. II p. 97. The Children were present when Mother made these statements. Mother eventually calmed down and took the Children to school.
[¶8] FCM Rice spoke with A.S. at school later that day, at which time A.S. told FCM Rice that
She tried to wake her mother up that morning so that her mother could get the children ready for school. [A.S.] wanted to go to school because her mother picks on her and [A.S.] wanted to be out of the house. When she could not wake her mother, [A.S.] got her brothers up and got them ready for school. She took
them to the bus stop. After [FCM] Rice and Ms. Shaffer left the home, [A.S.] hid under her bed because she was afraid her mother would smack her in the face again. When [Mother] dropped her off at school, she told [A.S.] "I hate you." [A.S.] also told [FCM] Rice that after the July 29, 2021 interview, [Mother] asked her what she had said to DCS. When [A.S.] refused to tell, her mother smacked her in the face.Appellant's App. Vol. II p. 97.
[¶9] After the August 9, 2021 incident, A.S. visited Shaffer two to three times per week. A.S. "viewed [Schaffer] as a safe person." Appellant's App. Vol. II p. 98. Shaffer observed that A.S.'s "hygiene was very poor" and "[o]n some days, her odor was very, very strong." Appellant's App. Vol. II p. 98. When necessary, the school health aide "would help clean [A.S.] and wash her hair." Appellant's App. Vol. II p. 98.
[¶10] Mother also failed to send A.S., B.S., and C.S.'s medications to school on a consistent basis. On August 19, 2021, Mother took A.S.'s, B.S.'s, and C.S.'s medications to the school but became agitated when school officials told her that they needed a doctor's note to administer the medications. Mother "shook the bottle of pills within [two] inches of the School Nurse's face." Appellant's App. Vol. II p. 97. Schaffer "noted this odd behavior and described [Mother] as 'unpredictable.'" Appellant's App. Vol. II pp. 97-98.
[¶11] DCS received a report of domestic violence in the family's home on October 26, 2021. That day, A.S. reported to Shaffer that Mother and T.T. had "had a fight the night before. [T.T.] grabbed [Mother] by the neck and pushed her to the ground. [T.T.] also threw a TV. [A.S.] took her younger sister away from the house because she was scared. [Mother] kicked [T.T.] out." Appellant's App. Vol. II p. 98. As A.S. discussed the incident and her fear with Shaffer, her demeanor would change, she would avoid eye contact, and her voice became quieter. FCM Rice attempted to investigate the allegations of domestic violence. She went to the family's home three times, and she could hear the Children inside, but Mother did not answer the door. DCS moved to compel Mother to make the Children available for interviews and to allow DCS to visit the home. The juvenile court granted the motion on November 19, 2021.
[¶12] After the juvenile court granted the motion, FCM McKynzi Fuson went to the home and spoke to Mother. Upon entering the home, FCM Fuson observed that "there were doors in front of [A.S.] and the boy[s'] windows." Appellant's App. Vol. II p. 98. Mother indicated that the doors had been placed in front of the windows "because [T.T.] was looking in." Appellant's App. Vol. II p. 98. Mother indicated that A.S. was sleeping on a cot in the boys' bedroom because she was scared. Mother further indicated that T.T. had broken the glass door on the stove and claimed that she would have no further contact with T.T. At the time of FCM Fuson's visit, Mother refused a drug screen. Mother also told FCM Fuson that she believed that A.S., who was having accidents at school, was doing so because she wanted "attention" and "new clothes." Tr. Vol. II p. 207.
[¶13] After speaking to Mother, FCM Fuson went to Arlington Heights Elementary School to speak to the Children. B.S. told FCM Fuson that
[T.T.] took the battery out of his bike and took his PlayStation. His mother got it back for him but she forgot the cord. [T.T.] no longer lives in their home because he kicked in the front door and broke the lock. His mother and [T.T.] were yelling. [T.T.] "flipped." [T.T.] left before the police arrived and squealed his tires. [B.S.] stated that he would be visiting with [T.T.] that day.Appellant's App. Vol. II pp. 98-99.
[¶14] FCM Fuson also spoke with A.S., who initially told FCM Fuson that she had not been present when Mother and T.T. had had the altercation. A.S. then began to cry and said that Mother had told her that if she did not lie to DCS about being present, Mother would "hit her and send her to boot camp." Appellant's App. Vol. II p. 99. With regard to the argument, A.S. told FCM Fuson that
[T.T.] threw down a glass pipe with water in it. Her mother and [T.T.] smoke weed and a white powder using this pipe. They call it getting "high." When [T.T.] threw the pipe down, it broke. [D.T.] went to protect her mother and cut her foot on the broken glass. [A.S.] was crying and stated that they always try to protect Mommy. The argument started when [T.T.] accused [Mother] of cheating on him with her friend John. [T.T.] knocked the door down and it landed on Mommy.Appellant's App. Vol. II p. 99. When FCM Fuson asked A.S. why she had been urinating on herself at school, FCM Fuson described A.S.'s response as follows:
It hurts to pee. She is peeing herself because she is scared of [T.T.]. She is scared of [T.T.] because he touched her. When
making this statement, [A.S.] pointed to her vagina. When asked how many times this has happened, [A.S.] held up two fingers. [A.S.] told her mother, but her mother didn't believe her.Appellant's App. Vol. II p. 99.
[¶15] Prior to initiating CHINS proceedings, FCM Rice had attempted to work with the family and had offered Mother the opportunity to participate in an informal adjustment, but Mother had declined. FCM Rice also had tried, without success, to offer Mother community resources and to schedule family team meetings with Mother. Given Mother's refusal to engage in informal services and the alleged domestic abuse and drug use in the home, DCS removed the Children from Mother's care on November 19, 2021.
[¶16] On November 23, 2021, DCS filed a petition alleging that the Children were CHINS due to substance abuse in the home, domestic violence between Mother and T.T., and an allegation that T.T. had inappropriately touched A.S.'s genitals. Mother continued to test positive for illegal substances and to display erratic behavior during the CHINS proceedings. On January 19, 2022, DCS filed a petition for the admission of child hearsay, seeking to have certain recorded statements made by A.S. and B.S. deemed admissible. Following a hearing, the juvenile court granted DCS's petition on February 14, 2022.
For instance, on one occasion, emergency personnel were called during Mother's supervised visit with the Children because Mother insisted that the school bus driver had given A.S. a date rape drug in an ice cream cone. Mother was screaming and crying in front of the Children and her pupils were dilated. Based on her training and experience, Hannah Barr, the FCM present at the time, believed that Mother was under the influence. Further, when emergency personnel arrived, A.S. was alert and was able to walk and talk. Emergency personnel determined that she did not need medical treatment.
[¶17] The juvenile court conducted a factfinding hearing on February 17, 2022. During the hearing, Mother admitted to using illegal drugs and indicated that she needed help to overcome her addiction. The juvenile court also noted Mother's continuing objection to the admission of A.S.'s and B.S.'s hearsay statements. At the conclusion of the hearing, the juvenile court took the matter under advisement and, on February 18, 2022, issued an order adjudicating the Children to be CHINS. The juvenile court subsequently held a dispositional hearing and, on March 24, 2022, issued a dispositional order in which it ordered Mother to participate in certain services and awarded DCS wardship of the Children.
Discussion and Decision
[¶18] In challenging the juvenile court's CHINS determination on appeal, Mother does not challenge the sufficiency of the evidence to support the juvenile court's determination, instead contending that the juvenile court abused its discretion in admitting the hearsay statements of A.S. and B.S.
The admission of evidence is a matter entrusted to the trial court's sound discretion. We will reverse an evidentiary ruling only on a showing of an abuse of discretion, meaning that the trial court's decision is against the logic and effect of the facts and circumstances before it. The fact that evidence was erroneously admitted does not automatically require reversal, and we will
reverse only if we conclude the admission affected a party's substantial rights.In re A.M., 121 N.E.3d 556, 559 (Ind.Ct.App. 2019) (internal citations and quotation omitted), trans. denied.
[¶19]" Our General Assembly has enacted legislation geared specifically to the use of a child's hearsay statements in CHINS proceedings." Id. at 560. Indiana Code Section 31-34-13-2 provides that a statement or videotape made by a child under age fourteen is admissible as evidence in a CHINS proceeding if certain requirements are met. Indiana Code Section 31-34-13-3, known as the Child Hearsay statute, lists those requirements, providing, in relevant part, that
A statement or videotape described in section 2 of this chapter is admissible in evidence in an action to determine whether a child ... is a [CHINS] if, after notice to the parties of a hearing and of their right to be present:
(1) the court finds that the time, content, and circumstances of the statement or videotape and any other evidence provide sufficient indications of reliability; and
(2) the child:
(C) is found by the court to be unavailable as a witness because:
(i) a psychiatrist, physician, or psychologist has certified that the child's participation in the proceeding creates a
substantial likelihood of emotional or mental harm to the child[.]Ind. Code § 31-34-13-3.
[¶20] In this case, after DCS requested permission to admit certain hearsay statements made by A.S. and B.S., the juvenile court conducted a hearing on February 7, 2022, at which time Mother was present and represented by counsel. Prior to the hearing, Dr. Melissa Steinkamp, a clinical psychologist, had evaluated A.S. and B.S. to determine if testifying at the factfinding hearing would create a substantial likelihood of emotional or mental harm. Dr. Steinkamp submitted reports to the juvenile court indicating that, in her opinion, both A.S. and B.S. would "likely suffer substantial emotional or mental harm as a result of testifying in court." Ex. Vol. pp. 10, 17. Dr. Steinkamp reiterated this opinion during the hearing.
[¶21] With regard to A.S., Dr. Steinkamp testified that A.S. "was very, very impacted" and that her demeanor changed when discussing prior traumatic events. Tr. Vol. II p. 54. Specifically, A.S. became
a little bit more shut down, she required more redirection, required at least some questions to be repeated, um, and generally, this is not the clinical way to describe it, but appeared as like a balloon deflating, um, you know, just that's kind of the best way I can describe what it, what it felt like, or what I observed, was like a balloon just deflating.Tr. Vol. II p. 54. Dr. Steinkamp further stated that taking into consideration "instances at school where [A.S.] became emotionally overwhelmed, um, and was not able to cope with it" and would run out of the classroom,
she may not even have the capability to emotionally process what she's being asked to emotionally process testifying. Um, or the inability to even verbally explain or, or communicate what it is that she's experiencing. So, in, or where that difficulty kind of comes into play, she might not be able to verbally communicate with the Court when she is feeling overwhelmed or when she unable to emotionally continue.Tr. Vol. II p. 55. Dr. Steinkamp further opined that given A.S.'s mental state, if forced to testify, she may not be able to regulate her emotions, might have difficulty with behavioral issues at her foster placement and at school, might develop eating and sleeping disorders, and might have nightmares. Dr. Steinkamp opined that the negative effects of being forced to testify could cause A.S. to suffer in both the short- and long-term. Dr. Steinkamp opined that being forced to testify could be a triggering traumatic event for A.S. and that A.S. would likely suffer emotional or mental harm if she were forced to testify.
[¶22] With respect to B.S., Dr. Steinkamp also testified that he had similar difficulty recognizing emotions and expressing himself. Dr. Steinkamp opined that B.S.
also has issues with becoming emotionally overwhelmed and becoming very reactive, um, running out of the classroom, you know, I think there is some issues maybe earlier on with some temper tantrum type things. Uh, so becoming emotionally reactive similar to [A.S.], um which is suggesting that he doesn't really implicate the ability to emotionally regulate himself.Tr. Vol. II p. 60. Dr. Steinkamp further opined that the negative effects on B.S. would likely be the same as those described with regard to A.S. Further, although portions of Dr. Steinkamp's reports for A.S. and B.S. were identical, she opined that each met the criteria for trauma and stress-related disorders and would suffer emotionally and mentally if forced to testify.
[¶23] On February 14, 2022, the juvenile court issued an order granting the admission of child hearsay. Based on Dr. Steinkamp's testimony and reports, the juvenile court found that
41. Dr. Melissa Steinkamp is a clinical psychologist. Dr. Steinkamp conducted evaluations of [A.S.] and [B.S.] to determine if testifying would create a substantial likelihood of emotional harm.
42. Dr. Steinkamp concluded that both [A.S.] and [B.S.] meet the criteria for "Unspecified Trauma and Stressor Related Disorder." Dr. Steinkamp notes that "children who experience trauma are at high risk for their symptoms being triggered resulting in severe recurrence of symptoms. Due to this, having to speak about these traumas in a court of law also has a high likelihood of causing substantial emotional or mental harm to the child." Dr. Steinkamp concluded that both children "will likely suffer substantial emotional or mental harm as a result of testifying in court." The Court accepts Dr. Steinkamp's conclusions as truthful and accurate.
43. Dr. Steinkamp testified that she has conducted previous child hearsay evaluations for DCS. Dr. Steinkamp has found a "substantial likelihood of emotional or mental harm" in approximately 50 to 60 percent of her child hearsay evaluations.
45. [DCS] has proven that [A.S.] and [B.S.] are unavailable as witnesses as contemplated by the statute.Appellant's App. Vol. II p. 92. In light of its determination, the juvenile court ruled that it would admit the following statements at the factfinding hearing: (1) A.S.'s statement to FCM Rice on July 29, 2021; (2) A.S.'s statement to FCM Rice on August 9, 2021; (3) A.S.'s statement to Shaffer on October 26, 2021; (4) A.S.'s statement to Shaffer on November 11, 2021; (5) B.S.'s statement to FCM Fuson on November 19, 2021; (6) A.S.'s statement to FCM Fuson on November 19, 2021; and (7) B.S.'s statement to Emily Perry on November 23, 2021.
Perry is the founder and Executive Director of Susie's Place, the child advocacy center where A.S., B.S., and C.S. were interviewed on November 23, 2021.
[¶24] Mother argues that "Dr. Steinkamp's report, along with her testimony, do not support" the juvenile court's decision to admit the hearsay statements. Appellant's Br. p. 13. In support, Mother points to the fact that Dr. Steinkamp appears to have "cut and paste[d]" portions of A.S.'s and B.S.'s reports. Appellant's Br. p. 14. However, even if this is true, we agree with the State that it is of no consequence that Dr. Steinkamp "may have cut and pasted some of the information between the two evaluations" because A.S. and B.S. "lived in the same household, they are close in age, and they had many of the same experiences except that Mother was probably harder on [A.S.] and there was no allegation that [B.S.] was molested." Appellee's Br. p. 27. Dr. Steinkamp testified that she had completed two separate investigations after which she had determined that both A.S. and B.S. would suffer emotional and mental harm if forced to testify at the factfinding hearing.
[¶25] The juvenile court, acting as the trier-of-fact, was in the best position to judge Dr. Steinkamp's credibility. See Galloway v. State, 938 N.E.2d 699, 716 (Ind. 2010) ("The trier of fact is in the best position to judge the credibility of the witnesses[.]"). We will not disturb the juvenile court's finding in this regard on appeal. See In re A.M., 121 N.E.3d at 561 ("We neither reweigh the evidence nor judge witness credibility; rather we consider only the evidence and reasonable inferences most favorable to the [juvenile] court's decision."). Given Dr. Steinkamp's testimony and reports indicating that A.S. and B.S. would be harmed emotionally and mentally if forced to testify, which the juvenile court specifically found to be credible, we conclude that the juvenile court did not abuse its discretion in admitting the challenged statements during the factfinding hearing.
[¶26] The judgment of the juvenile court is affirmed.
Mathias, J., and Pyle, J., concur.